I am a professor at Santa Clara University School of Law, where I teach and write about Internet Law, Intellectual Property and Advertising Law. Before I became a full-time professor in 2002, I practiced technology law in the Silicon Valley from 1994-2002. I've been blogging at the Technology & Marketing Law Blog since 2005 (http://blog.ericgoldman.org).

What Should We Do About Revenge Porn Sites Like Texxxan?

Periodically, a new controversy springs up about a website that encourages users to post anti-social or distasteful content. A few years ago it was sites like JuicyCampus or People’s Dirt that requested users to gossip about each other; followed by IsAnyoneUp? that linked user-submitted pornographic photos to the subject’s Facebook page. The latest website to stir up a media frenzy is Texxxan.com, which encourages users to post ”revenge porn,” i.e., pornographic depictions of former lovers, ostensibly to get revenge on them.

The Texxxan Lawsuit Will Fail

Texas lawyers recently filed a class action lawsuit against Texxxan.com, its web host GoDaddy ($DADY), its uploaders and its subscribers. No matter how much the lawyers hype their lawsuit in the media, it’s mostly dead on arrival. All of the defendants–other than the users actually submitting the revenge porn–are protected by 47 USC 230, the law that says websites aren’t liable for third party content. Section 230 also explicitly protects website users, so the claims against the website subscribers are specious. In fact, Texas recently enacted a broad anti-SLAPP law designed to discourage anti-free speech lawsuits. If the courts determine that the revenge porn relates to a “matter of public concern” (not likely, but it is possible), the plaintiffs’ lawyers will be writing checks to the improperly targeted defendants.

It’s more complicated assessing the liability of the users who post revenge porn. We need to know more about how the defendants got the revenge porn and under what terms or understandings. (Obviously, that could lead to some salacious pillow-talk appearing in court records). Because the court will have to evaluate each submitted item’s history on a one-by-one basis, the effort to organize a class action should fail for procedural problems (irrespective of its substantive merit or lack thereof).

Because the existing class action lawsuit is so weak, the Texxxan plaintiffs’ best legal chance is to bring individual lawsuits against the defendants who did them wrong. Normally, when dealing with distasteful online content, plaintiffs have difficulty identifying the otherwise-anonymous defendants–a problem that encourages the plaintiffs to pursue easier-to-find defendants, like web hosts. In contrast, in this particular case, revenge porn plaintiffs often can find the defendants, because (we hope…) there’s a limited number of people who have nude depictions of the plaintiff.

Still, our current legal system isn’t well-designed to redress user-submitted online pornography. And as a practical matter, even if the law were more effective, there will always be uncomfortably anti-social behavior online. So, what should we do differently?

Perhaps most importantly, distasteful content websites routinely fail on their own accord, often quite quickly. JuicyCampus? Gone. People’s Dirt? Gone. IsAnyoneUp? Gone (but coming back?). Even Texxxan already put its content behind a paywall, rendering the content largely invisible. My guess it that Texxxan.com is already on an irreversible path towards a complete winddown. These shutdowns aren’t an accident. Inevitably, the website operators face enormous pressure from the media coverage, the public’s opprobrium, the threats of vendors (especially payment service providers or ad networks) to cut off or reduce service, and yes, even the legal risks. As a result, distasteful content websites have comparatively short shelf lives. As attributed to Lao Tzu (and repeated in the movie Blade Runner), ”the flame that burns twice as bright, burns half as long.” If the marketplace is going to drum these websites out of business organically, without any new laws, perhaps the existing regulatory policy is working OK.

Furthermore, many distasteful content websites exist principally because of Google ($GOOG) indexing. As Google evolves its algorithm, I hope it will eventually reduce the visibility of these low-value websites–which in turn will reduce the websites’ financial potential. The ordinary evolution of Google’s algorithm is far more likely to suppress distasteful content website entrepreneurship than any new law would.

The Future of Revenge Porn

Let’s face it: between sexting and sex tapes, far more private pornography is being generated than at any point in human history. Whereas having nude/sexual depictions of a person used to be a rarity, for future generations (and perhaps current ones) such depictions are going to be normal–perhaps even ubiquitous.

When we reach that point, there will be substantially less “scandal” or taint associated with the unauthorized posting of nude/sexual depictions. After all, many other folks will have made similar depictions. The public dissemination of such depictions might still violate the privacy expectations of the depicted individuals, but it will not be seen as unusual.

This points the way to the long-term “solution” to the revenge porn “problem”: we as a society will necessarily have to adjust our social norms about the dissemination of nude or sexual depictions to reflect their ubiquity. In fact, we’re likely to develop a type of “blindness” to such content, just like today it’s bad etiquette to check out a colleague’s house value on Zillow ($Z)–or, at least, we don’t discuss the prices publicly, even if we’ve checked them out. If we can wait until our social mores about online nude/sexual depictions adjust, we won’t need any new laws to facilitate that adjustment.

Still, for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice will be simple: don’t take nude photos or videos. Even if you never share them with anyone, these depictions seem to have a surprising capacity to leak out (for example, there are numerous stories of IT technicians or criminal hackers obtaining photos and videos). If you decide to take nude photos or videos, never share them with anyone else. Effectively, when you do, you are gambling that person will not betray your trust for the rest of their lives. The reality is that most people aren’t that trustworthy; or even if they are, it’s hard to know that in advance.

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“When we reach that point, there will be substantially less ‘scandal’ or taint associated with the unauthorized posting of nude/sexual depictions. After all, many other folks will have made similar depictions. The public dissemination of such depictions might still violate the privacy expectations of the depicted individuals, but it will not be seen as unusual.” You expect our society to evolve to a point where people are okay with their family members see them posing nude in photos unwillingly? I think this utopian vision of the future is counter to generalized social norms and I doubt as a father I’d be okay with people posting pictures of my children nude even if they were adults. That’s the problem, people can be okay with the idea of their nude body, but not the idea of their parents seeing their nude body all over the internet. Unless you predict a future where fathers willingly accept that once their daughters hit 18, nude pictures will blanket the internet, I don’t see you making a valid argument here.

The author then writes “Still, for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice is simple: don’t take nude photos or videos.” I find this to be blaming the victim, once victimized by a site like Texxxan etc. you’re telling a person that it’s their own fault.

Frankly I find the ideas you are trying to put forth as intellectual rubbish, and I expect more from a Forbes article.

I’m sorry to disappoint your expectations for Forbes. My last section deals with “the future.” It’s hard to know how our social norms will evolve in the situation where a lot of people (a majority?) will have created private pornography. We’ve never encountered that situation before, but our social interactions are going to have to adjust somehow. As for the last paragraph, it provides a recommendation for the future–for those who want to opt-out of the future–and not a critique of past choices. Eric.

So, by your thinking, child pornography, rape, homicide, bank robbery, shoplifting, etc will be acceptable in the future? Do this: print out my response and look at it in 2015. Not only will this be illegal under Federal Law, but every state will have similar laws, and the site owners as well as the posters will be registered sex offenders.

So if we are to expect our social norms to change in the future in such a way that former lovers exploiting the willingness of someone else to have volunerable pictures of them taken by plastering them all over the internet is normal, then should we also expect child pornography to be normalized in the same way? If it shouldn’t matter that there are sexual images of a person for all to see, then it shouldn’t matter what their age is either, in fact the younger they are, the easier it should be for them to get used to this idea of having sexual images of themselves for all to see.

Rather, I think there should be the same type of outrage for this involuntary porn as there is for child pornography. Involuntary porn should never become “normal”

Whoa, that’s impressive how you so quickly jumped from revenge porn to child porn. Given how heavily we criminalize the creation of child porn and the contrasting fact that the creation of most private pornography is completely legal, I don’t think child porn is likely to become as ubiquitous as adult pornography. So I don’t really understand your point. Eric.

My point is why can’t child porn be as ubiquitious in this future you propose? What is it that makes child porn so objectionable? Is it the exploitation? The fact that the subjects are below the age of consent? If those are the reasons, then child porn is really similar to involuntary porn, and should either be equally “normal” or equally objectional.

When someone sends a nude picture to someone, in most cases it is because they trust the reciepient and want to share their intimate parts with them. The problem is when that trust is betrayed; when they are exploited. And just because they consented to have the image taken, doesn’t mean they consented to have it disemenated across the web. As you said “most private pornography is completely legal” and that’s fine, but I think that is where you are missing the point. PRIVATE. “Private” does not mean to be shared across the whole internet, private has the implication that it will stay exactly that, private, just with the people it was indented for. If I want an image of myself to be public (inapproprate or otherwise), I’ll put it on facebook & share it with my friends, if I want an image to remain relatively private, I will send the image to the person I want to see it. And I will feel just as betrayed/upset if I were to find that image as the newest meme as I would if a nude picture of myself found itself online.

I tend to agree with Marc Randazza’s rules of porn “Rule #1: The subjects must be adults Rule #2: The subjects must be consenting adults” And that consenting is not just for the creation of the images, but the diseminating of them as well.

Attempts to equate “child porn” and “revenge porn” (or involuntary porn in your words) are not credible. We ban the creation of child porn for numerous reasons, including the child’s inability to properly consent to sex and the fact that children may be harmed (physically or psychologically) by the process of having sex. This has nothing in common with the creation of adult pornography between adults who can and do consent to having sex. Revenge porn might involve other abuses, such as surreptitiously recording nude or sexual shots, or the unconsented dissemination of the depictions, but those harms raise different concerns than the harms from creating child porn.